2 Denio 336 | N.Y. Sup. Ct. | 1845
The terms of the devise in favor of the testator’s daughter Rachel, the wife of J. Knickerbaclcer, are such as are appropriate to create an estate tail as to a moiety of the residue of the testator’s real estate, if it were now possible so to •limit an estate in lands. But as such an estate cannot now exist, it is insisted on behalf of the plaintiffs that the will ought to be so construed as to give the testator’s daughter only an estate for life, with remainder to her children. If this were so, the children would take as purchasers and not as the heirs of their mother, and their title would not be prejudiced by the conveyance of the daughter. This, it is argued, would effectuate the intention of the testator, who clearly indicated the children of his daughter as the ultimate objects of his bounty, and did not intend that their mother should be enabled to defeat their estate. It is undoubtedly a cardinal principle in the construction of wills that the intention of the testator must control; subject however to the qualification that such intention be conformable to the rules of law. Here it is manifest that he intended to create an estate tail; and in that particular mode he did unquestionably intend that the enjoyment of this property should be secured to the children of his daughter after the death of their mother, who by force of the entailment would have held the
But the counsel for the plaintiffs insists that the devise of the moiety of the residue to Mrs. Knickerbacker was, during the widowhood of the testator’s wife a contingent remainder; and consequently that nothing passed by the deed executed by her and her husband to Bleecker in 1809, Mrs. Visscher, the first tenant for life, being then living and unmarried. I am satisfied however, that the remainder was a vested and not a contingent one. .A remainder is vested where the interest is fixed, although it may be uncertain whether it will ever take effect in possession, It is the present capacity of taking effect in possession if the possession were to become vacant, that distinguishes a vested from a contingent remainder. (Kent's Com. 4th ed. 403.
The next question which was discussed on the argument relates to the quality of the fee devised to Mrs. Knickerbacker in the premises in question. Assuming that the devise over to. the children of Nicholas Visscher, in the event mentioned in the
v But the limitation over to the children of Nicholas Yisscher was itself void. It was to take effect upon the indefinite failure of issue of Mrs. Knickerbacker; and if estates tail were legal, would have been a remainder limited upon an estate tail in Mrs. K. In determining that she took an estate in fee simple by force of the statute abolishing entails, it follows of course that remainders limited to take effect upon the failure of issue in tail are void. (Lyon v. Burtis, 20 John. 483; Wilkes v. Lyon, 2 Cowen, 333.)
Mrs. Knickerbacker, being seized in fee simple (subject to the life estate of Mrs. Yisscher) joined with her husband in a deed of bargain and sale to Bleecker in fee, which she acknowledged in the manner required of a feme covert to pass her title to land. This conveyance is expressed to be in consideration of fifty dollars; but it is found by the special verdict that no consideration was paid, and for this reason the plaintiffs’ counsel insists that the deed is void. The cases relied on to sustain this position are those in which no consideration whatever was mentioned in the deed ; and they depend upon a different principle. The question here is whether the plaintiffs are at liberty to
Having therefore shewn an absolute title to the premises in question in Mrs. Knickerbacker, and a valid conveyance in fee from her, it follows that the plaintiff, Mrs. Grout, cannot claim as devisee under the will because the whole estate was given to her mother, nor as heir of her mother because she conveyed her whole title in her lifetime. The judgment of the supreme court should be affirmed.
On the question being put, “ Shall this judgment be reversed ?” all the members of the court present who had heard the argument, to wit, The President, and Senators Backus, Beers, Bocicee, Burnham, Chamberlain, Clark, Deyo, Emmons, Folsom, Hand, Jones, Lester, Lott, Porter, Sedgwick, Smith, Talcott, Varney and Wright, (20) voted in favor of affirmance.
Judgment affirmed.
See the authorities referred to by Beardsley, J. in Vanderheyden v. Crandall (ante, pp. 9—18.)
See also Hurn v. Soper, (6 Har. & John. 276.)